333 F.

2d 367

INTERNATIONAL ASSOCIATION OF MACHINISTS et al.,

Plaintiffs-Appellants,
v.
UNITED AIRCRAFT CORPORATION, Defendant-Appellee.
No. 495.
Docket 28904.

United States Court of Appeals Second Circuit.

Argued May 26, 1964.
Decided June 23, 1964.

Mozart G. Ratner, Washington, D. C. (Plato E. Papps, Washington, D. C.,

and William S. Zeman, Hartford, Conn., on the brief), for plaintiffsappellants.
Joseph C. Wells, Washington, D. C. (Frank E. Callahan, New Haven,
Conn., on the brief), for defendant-appellee.
Before LUMBARD, Chief Judge, and WATERMAN and HAYS, Circuit
Judges.
HAYS, Circuit Judge:

This is an appeal from an order denying plaintiffs' application for a temporary

injunction restraining defendant from taking any step to prosecute two actions
against plaintiffs which are now pending in the Superior Court, Hartford
County, Connecticut. The temporary injunction was sought in connection with
an action for a declaratory judgment and a permanent injunction ordering
defendants to withdraw their state actions.

The present controversy traces its origin to a strike conducted by the plaintiff
unions against certain Connecticut plants of defendant during the period June 8,
1960 to August 11, 1960, and to a settlement agreement under which the strike
was terminated. Differences have arisen over the interpretation of the strike
settlement agreement and over its implementation. As a result the unions have

filed unfair labor practice charges with the National Labor Relations Board and
have brought actions against defendant in the District Court under Section 301
of the National Labor Relations Act (29 U.S.C. 185) seeking damages for
violation of the strike settlement agreement, and the defendant has brought two
actions in the state courts of Connecticut demanding fifteen million dollars as
damages allegedly suffered as the result of the strike action taken by the
unions. It is these latter state court actions which the unions asked the District
Court to restrain in the present action.
3

The burden of the unions' complaint is that the maintenance of the state court
actions, which they claim were brought as a reprisal for the unions' filing unfair
labor charges and actions under 301, deprives the unions of rights granted
them by Section 7 of the National Labor Relations Act. The unions, besides
their actions to restrain defendant in the District Court, have filed additional
unfair labor practice charges alleging that the defendant violated Section 8(a)
(1) of the National Labor Relations Act by bringing the state court actions
against the plaintiffs. The General Counsel has issued a complaint on these
charges.

In the state court actions the unions entered pleas in abatement challenging the
jurisdiction of the state courts to entertain the actions brought by the defendant.
In effect the unions' pleas in abatement alleged: (1) that the bringing of the state
court actions was an unfair labor practice; (2) that the claims of defendant in
the state court actions included claims of damages for activity which is
protected by the National Labor Relations Act, and (3) that defendant's resort in
its complaints in the state court actions to an allegation of conspiracy deprived
the unions of rights under Section 7 of the Act and constituted an additional
unfair labor practice.

The state court sustained demurrers to the unions' pleas in abatement. The
unions thereupon filed the present action in the United States District Court,
claiming that the state court was proceeding without jurisdiction, in violation of
their rights, and requesting a declaratory judgment and an injunction ordering
defendant to withdraw and dismiss its actions in the state courts. The unions
moved for temporary and permanent injunctions. The District Court denied the
application for a temporary injunction.1 We affirm the decision of the District
Court.

Plaintiffs contend that this case does not present the comparatively simple
situation where a state court is called upon to determine whether certain activity
is at least arguably an unfair labor practice, the situation in which the state
court, if it decides that the activity is arguably an unfair labor practice, must

decline to accept jurisdiction because of the exclusive primary jurisdiction of

the National Labor Relations Board to determine what are and what are not
unfair labor practices. San Diego Bldg. Trades Council v. Garmon, 359 U.S.
236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).2 It is true that whether the defendant
committed an unfair labor practice in bringing the state court actions is about to
be presented to the Board. The state court is not asked to pass upon the question
and makes no claim of any power to do so. To this extent the state court is not
exercising any jurisdiction which properly belongs to the Board. If the Board
should decide that defendant in bringing the state court actions committed an
unfair labor practice, it might order the defendant to withdraw the actions. But
see Matter of Clyde Taylor, 127 N.L.R.B. 103 (1960).
7

The plaintiffs, although they mention it in their Brief, do not appear to press the
point that the state court is usurping what is arguably within the Board's
jurisdiction. On the contrary they urge that the state court's action is a
deprivation of Section 7 rights over which the Board has no jurisdiction at all.
Their arguments run as follows: The Board has jurisdiction only over employer
action which is an unfair labor practice under Section 8. But it is possible for
employees and labor organizations to be deprived of their Section 7 rights by
state action as well as by employer action. Where there has been a deprivation
of Section 7 rights by state action, the federal courts must protect those rights
since the Board has no power to do so. In the present case the action of the state
court in entertaining defendant's damage suits is state action which deprives
plaintiffs of certain of their rights under Section 7, in particular, the right to
"free access to the Board and the federal courts for unfair labor practice charges
and 301 suits without deterrence or reprisal." Section 7 rights are, by virtue of
the Supremacy Clause, "constitutional rights." A state court has no jurisdiction
to deprive a litigant of constitutional rights. Therefore the federal court can
enjoin the state court from entertaining the suits (or, equivalently, order the
defendant to withdraw them).

There are a number of fallacies in the plaintiffs' argument. For example, though
it does not appear to be completely necessary to the argument, there is no
reason whatever to believe that a state court is without "jurisdiction" to decide
the constitutional rights of the litigants before it. A more serious error is the
assumption that because a right is a federal right by reason of the Supremacy
Clause it is a "constitutional right" in the bill of rights sense, i. e. that it is to be
protected from invasion via state action by extraordinary remedies. If we call
rights which are preemptive by reason of the Supremacy Clause, "constitutional
rights," then all federal rights are "constitutional rights" and the phrase
"constitutional rights" loses any real meaning. Still more basic to the argument
is the contention that the federal courts have exclusive jurisdiction over those

rights under Section 7 which are not within the Board's power to vindicate.
There is no statutory or judicial authority which gives the federal courts
jurisdiction over such rights. If the federal courts have "federal question"
jurisdiction, a very doubtful proposition in the present case, see Pan Am.
Petroleum Corp. v. Superior Court, 366 U.S. 656, 661-66, 81 S.Ct. 1303, 6
L.Ed.2d 584 (1961), there is no ground for holding that jurisdiction to be
exclusive. Plaintiffs do not suggest any reason why a state court is not perfectly
competent to pass upon the question of whether a litigant is being deprived by
state action of his rights under Section 7 of the National Labor Relations Act,
and actually this proposition has been tested time and again in cases coming to
the United States Supreme Court in the regular course from state courts, with
no suggestion that the state courts were without jurisdiction to pass upon it. See
e. g. Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89
L.Ed. 1782 (1945); La Crosse Tel. Corp. v. Wisconsin Employment Relations
Bd., 336 U.S. 18, 69 S.Ct. 379, 93 L.Ed. 463 (1949); International Union, U. A.
W. v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978 (1950); Amalgamated
Ass'n v. Wisconsin Employment Relations Bd., 340 U.S. 383, 71 S.Ct. 359, 95
L.Ed. 364 (1951); Guss v. Utah Labor Relations Bd., 353 U.S. 1, 77 S.Ct. 598,
1 L.Ed.2d 601 (1957).
9

In Local 24, Teamsters Union v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d
312 (1959), the state action involved was the action of the Ohio courts which,
to use plaintiffs' language, deprived Local 24 of certain of its rights under
Section 7 of the Act. The Supreme Court did not suggest that the state courts
had no jurisdiction to entertain the case. For a case in which the state court held
that a state statute could not infringe Section 7 rights, see Coos Bay Lumber
Co. v. Local 7-116, Int'l Woodworkers, 203 Or. 342, 279 P.2d 508, on
rehearing, 280 P.2d 412 (1955).

10

In the case of Amalgamated Clothing Workers v. Richman Bros. Co., 348 U.S.
511, 75 S.Ct. 452, 99 L.Ed. 600 (1955) the union sought exactly what it seeks
here, an injunction requiring the employer to withdraw his action in the state
court. The Supreme Court said at page 518 of 348 U.S., at page 456 of 75 S.Ct.:

11

"The assumption upon which the argument proceeds is that federal rights will
not be adequately protected in the state courts, and the `gap' complained of is
impatience with the appellate process if state courts go wrong. But during more
than half of our history Congress, in establishing the jurisdiction of the lower
federal courts, in the main relied on the adequacy of the state judicial systems to
enforce federal rights, subject to review by this Court. With limited exceptions,
it was not until 1875 that the lower federal courts were given general
jurisdiction over federal questions. During that entire period, the vindication of

federal rights depended upon the procedure which petitioner attacks as so

grossly inadequate that it could not have been contemplated by Congress. The
prohibition of 2283 is but continuing evidence of confidence in the state
courts, reinforced by a desire to avoid direct conflicts between state and federal
courts.
12

"We cannot assume that this confidence has been misplaced."

13

Nothing has occurred since Richman which casts any doubt on what the
Supreme Court there said. The Court has not suggested that there is any less
reason today for having confidence in the state courts.

14

It is true, as plaintiffs urge, that the extent of the jurisdiction of the courts, both
state and federal, over protected activities and unfair labor practices has been
more carefully defined than it was at the time of the decision of the Richman
case. Garmon, supra, laid down the rule that where the subject activities are
arguably within the Board's jurisdiction, the courts have no power to decide
whether they are or are not protected activities or unfair labor practices. The
difficulties which the court stressed in Richman no longer exist to the same
degree.

15

But in the present controversy, plaintiffs have been at great pains to establish
that this is not a Garmon type case, i. e. a case involving the question of the
jurisdiction of the Board, but rather a case involving "state action" depriving
them of Section 7 rights. Moreover even in a Garmon type case, the fact that
the situations in which the state courts lack jurisdiction are somewhat clearer,
because of the arguability rule, does not suggest the result for which the
plaintiffs contend, to wit, that federal courts may enjoin state courts from
deciding the issue of arguability.

16

In any event, even if we found that the auxiliary reasons given in Richman for
refusing an injunction were no longer dispositive, we would still be faced with
the statute, Section 2283.3 There is nothing in the present case which would
make that statute inapplicable. There is no express authorization by Act of
Congress. There is no jurisdiction in the district court which would be aided by
an injunction. The district court has issued no judgments which require
protection or effectuation. We believe Section 2283 applies and prevents the
issuance of an injunction.

17

Affirmed.

Notes:
1

Without mention of the application for a permanent injunction

At the same time the plaintiffs have not abandoned their contention, which was
one of the grounds for their plea in abatement, that the defendant, in the state
court actions, has claimed damages for protected as well as unprotected strike
activity

28 U.S.C. 2283 reads as follows:

"A court of the United States may not grant an injunction to stay proceedings in
a State court except as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or effectuate its judgments."